CHRISTIAN M. LONGO, Petitioner-Relator,
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Adverse Party
Argued and Submitted November 8, 2013.
CC 07C21285. Original proceeding in mandamus.[*]
Mark A. Larrañaga, Seattle, Washington, argued the cause and filed the briefs for relator. With him on the brief were Michelle A. Ryan and Bert Dupré, Portland.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for adverse party. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Kenneth A. Kreuscher, Portland Law Collective, LLP, Portland, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association.
[355 Or. 527] BALDWIN, J.
In this original proceeding, relator (petitioner), who is the petitioner in the underlying post-conviction case, seeks a writ of mandamus to compel the Marion County Circuit Court judge presiding over this case (the post-conviction court) to issue a protective order with respect to documents and communications subject to the lawyer-client privilege. Petitioner's proposed protective order seeks to prevent adverse party (the state), who is the superintendent of the Oregon State Penitentiary and the defendant in the underlying post-conviction case, from disclosing such information to third parties unrelated to the post-conviction case. For the reasons that follow, we conclude that the post-conviction court's order denying petitioner's motion for a protective order was erroneous, and we direct the issuance of a peremptory writ of mandamus requiring the post-conviction court to vacate that order and issue a protective order.
Petitioner was convicted in Lincoln County Circuit Court of seven counts of aggravated murder and sentenced to death. This court affirmed petitioner's judgment of conviction and sentence on direct review in State v. Longo, 341 Or. 580, 148 P.3d 892 (2006), cert den, 552 U.S. 835, 128 S.Ct. 65, 169 L.Ed.2d 53 (2007). Petitioner subsequently filed a petition seeking post-conviction relief, asserting that his court-appointed appellate counsel on direct review had provided inadequate and ineffective assistance in violation of his constitutional right to counsel under Article I, section 11, of the Oregon Constitution  and the Sixth Amendment to the United States Constitution.
In the post-conviction proceeding, the state filed a motion to compel petitioner to produce documents relating to his capital murder case. In response, petitioner filed a motion
seeking a protective order with respect to materials in his appellate counsel's file that are subject to the lawyer-client [355 Or. 528] privilege as defined in OEC 503(2). Petitioner did not object to providing the information to the state to allow it to prepare a defense against petitioner's post-conviction claims. Rather, petitioner sought a protective order to prevent the state from disclosing privileged communications to third parties, particularly third parties who might be associated with prosecuting any future retrial of his criminal case. Petitioner argued that permitting disclosure of the communications without restrictions could result in the prosecutor obtaining privileged information--to which the state would not otherwise have access--that could substantially prejudice petitioner in a future retrial. Petitioner claimed that, if he were to prevail on his post-conviction claims and obtain a remand for additional trial or sentencing proceedings, the prosecutor could use such privileged information in ways that would be difficult to anticipate or prevent.
Petitioner requested that the post-conviction court issue a protective order requiring that any privileged information produced through discovery be used solely for the purpose of litigating the claims presented in his petition for post-conviction relief. Petitioner more specifically requested that the Department of Justice, which represents the state in the post-conviction case, " be barred from turning such documents over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies, such as the Lincoln County District Attorney's Office," without an order from the post-conviction court permitting it to do so.
[355 Or. 529] After considering the parties' arguments, the post-conviction court determined that the exception to the lawyer-client privilege provided under OEC 503(4)(c)--which states, " There is no privilege" for a " communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer" --rendered the lawyer-client privilege inapplicable because petitioner had alleged that appellate counsel had breached his duty to petitioner. Thus, the court concluded that the state was free to obtain discovery of confidential communications as relevant to petitioner's post-conviction claims and was not restricted from conveying that information to third parties outside the post-conviction proceeding.
The post-conviction court recognized, however, that any privileged information divulged during the post-conviction proceeding due to OEC 503(4)(c) would again be privileged following the post-conviction case. The court explained:
" To the extent that [petitioner is] requesting * * * a protective order for certain information, it's unnecessary. That information to be derived by [the] exception to the attorney/client privilege [embodied in OEC 503(4)(c)] can only be used in this proceeding and would not be usable subsequently in any other matter because the privilege would resurface. And * * * essentially I think that's all [petitioner is] asking for is to make sure that somehow
this * * * not be redisclos[ed], reused, or anything else."
The court entered an order denying petitioner's motion, but suspended implementation of the order so that petitioner could pursue a writ of mandamus.
Petitioner then petitioned this court for a writ of mandamus directing the post-conviction court to issue a protective order, and we issued an alternative writ of mandamus. The post-conviction court declined to vacate the order, [355 Or. 530] and this case is now before us for decision. See ORS 34.250(7). Petitioner now argues that we should direct the post-conviction court to issue a protective order prohibiting the state from disclosing to third parties, particularly prosecutorial authorities, confidential lawyer-client communications contained in petitioner's appellate counsel's file without leave from the post-conviction court permitting the state to do so. In petitioner's view, without a protective order, there is no meaningful way to ensure that, if post-conviction relief is obtained and the case is remanded for additional proceedings, privileged information will not be used in a manner prejudicial to his interests. The state responds that the circumstances of this case do not justify a protective order and that, in any event, the mandamus relief petitioner seeks is not available to petitioner as a remedy.
Petitioner contends that the breach-of-duty exception to the privilege in OEC 503(4)(c) is no broader than necessary to defend against the claims raised in his petition for post-conviction relief and that, for all other purposes, the protection provided under OEC 503(2) applies. Petitioner argues that the privilege continues to exist for all other purposes and that the post-conviction court's failure to issue an appropriate protective order to protect the privilege constituted legal error.
The state responds that the post-conviction court properly acted within the range of discretionary choices available. Notably, the state concedes that the exception to the lawyer-client privilege provided under OEC 503(4)(c) is limited. The state acknowledges that, if petitioner prevails on his post-conviction claims, petitioner may again assert a privilege to confidential communications disclosed during the post-conviction case and limit their disclosure or use in any future proceedings. In the state's view, the post-conviction court's decision takes that possibility into account [355 Or. 531] and defers protecting the privilege until any other proceeding is underway.
Thus, the core issue is whether the post-conviction court committed legal error by failing to prevent the disclosure of confidential information. However, we first consider whether mandamus is a proper remedy under the circumstances of this case.
A. Mandamus as a remedy